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On-Call Supervisory Time Qualifies As Attendant Care Benefits

In Smith v. Allstate, un-published opinion per curiam of the Court of Appeals decided June 23, 2011, (Docket No. 295484), the Court of appeals rendered an important decision on issues involving claims for attendant care in a no-fault first party case.

In July 1996, the plaintiff sustained a traumatic brain injury when he was struck by a car while riding a bicycle. Although the injury impaired plaintiff‘s memory and affected his personality and mental well-being, he was able to return to work for a period of time after the accident.

In May 2005, the plaintiff filed a lawsuit for recovery of PIP benefits against Allstate, who had been assigned to administer plaintiff‘s claim by the Michigan Assigned Claims Facility.

Defendant Allstate paid certain PIP benefits after the action was filed, but disputed plaintiff‘s entitlement to attendant care benefits. The case proceeded to a bench trial. The trial judge held that the plaintiff was entitled to attendant care benefits for services provided by his wife, Katherine Douglas, from May 31, 2004, up to the date of trial. Plaintiff was awarded weekday aide care of seven hours each day and week-end aide care of 16 hours each day up to November 1, 2007, and 40 hours each week from November 1, 2007, up to November 18, 2009, the date of the judgment. Allstate appealed.

On Appeal, the Court held that attendant care or nursing care for ―on-call time is compensable if it is necessary. Such time may be compensable even if the caregiver was pursuing his or her own interests or per-forming household tasks, so long as the caregiver performs these tasks within the limits of the on-call job.

Furthermore, the Court upheld the hourly rate of $40 used by the trial court to determine the award. In this regard, the Court stated that compensation paid to a licensed health-care professional who provides similar services may be used to determine reasonable compensation for an unlicensed person.

In addition, the rate charged by institutions may also provide a valid method for determining whether the charge for care provided by a family member for comparable services is reasonable. Here, the $40 rate was supported by testimony regarding the rate charged by commercial agencies. Thus, the trial court‘s use of the $40/hr rate was within the range of evidence.

However, the Court held that the trial court‘s decision does not indicate that it rendered findings with respect to the requirement that the caregiver reasonably expect payment at the time of the claimed performance (i.e the requirement that the expenses be incurred).

In this regard, the caregiver, Katherine, did not maintain records of her claimed attendant care. Instead, she completed ―affidavit of attendant care services‖ forms on June 25, 2007, for certain past months in an effort to reconstruct her time, which were vague and incomplete. Thus, the Court remanded the case back to the trial court for further proceedings on the sufficiency of the documentation supporting the hours underlying any award.